Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 50
FSCO A15-002678
BETWEEN:
MARIA NACARIO
Applicant
and
CERTAS DIRECT INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before: Arbitrator Lynda Tanaka
Heard: In person at ADR Chambers on January 16, 2017
Appearances: Mr. Abel Mamed, representative for Ms. Maria Nacario Mr. D. Keith Smokum, representative for Certas Direct Insurance Company
Issues:
The Applicant, Ms. Maria Nacario, was injured in a motor vehicle accident on November 17, 2012 and sought accident benefits from Certas Direct Insurance Company (“Certas”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
At a resumption of the Pre-Hearing held on December 16, 2016, the representative of the Applicant informed ADR Chambers that he had been unable to contact his client and he requested an Order removing his firm as representatives of record. The Pre-Hearing arbitrator refused the request. Certas advised the representative of the Applicant that in the event that he was removed as representative of the Applicant, Certas would ask that the Application for Arbitration be dismissed with an Order for expenses payable to Certas.
The issues in this Hearing are:
Should Maria Mikhailitchenk Personal Injury Law be removed as representatives of record for the Applicant in this Application for Arbitration?
Should the Applicant’s Application for Arbitration be dismissed?
Should Certas be awarded its expenses of these proceedings and in what amount?
Result:
Maria Mikhailitchenk Personal Injury Law is removed as representatives of record for the Applicant in this Application for Arbitration.
The Applicant’s Application for Arbitration is dismissed.
The Applicant shall pay to Certas its expenses of these proceedings, if demanded by Certas, in an amount not to exceed $850.00.
EVIDENCE AND ANALYSIS:
Chronology
The Applicant’s representative advised ADR Chambers and Certas by letter, dated September 9, 2016, that it had been unable to reach the Applicant to obtain instructions from her since April 2016, and that it wished to be removed as representative of record. A resumption of the Pre-Hearing had been held on August 17, 2016, because of issues of outstanding productions from the Applicant and a time limit of September 15, 2016 to comply with the production requirements was imposed then. The hearing dates of January 16, 17 and 18, 2017 had been set at an earlier Pre-Hearing and the Applicant had been advised of those dates and the importance of her attendance. A further resumption of the Pre-Hearing was held December 13, 2016 to consider the request by the Applicant’s representative to be removed from the record, but the Pre-Hearing arbitrator refused the request.
The hearing opened on January 16, 2017, and the Applicant did not attend. The Applicant’s representative advised that he had reached his client the previous Friday and had received information concerning her personal circumstances that explained, in part, her inability to be reached for instructions. He had confirmed instructions from her that she consented to his firm being removed as representatives of record for her and also to an Order dismissing her Application for Arbitration. He could not confirm that she was aware that Certas was requesting an Order for expenses against her, though the notice of that request was indicated in the Pre-Hearing letter, dated December 14, 2016.
Counsel for Certas indicated that he did not oppose the Order removing the representative of record and further that, while he wished an Order of expenses against the Applicant, he was content if it was worded to be enforced only if Certas demanded it. He agreed to a cap on the amount of the expenses.
The Removal of the Representative of Record and the Dismissal
For the reasons that follow, the Order removing Maria Mikhailitchenk Personal Injury Law as representatives of record is granted and the Application for Arbitration is dismissed.
I am satisfied that the Applicant has been given notice of all of the proceedings related to her Application for Arbitration at her last known address, and has now consented to the Orders through her representative.
Pursuant to Rule 37.7 of the Dispute Resolution Practice Code (“DPRC”), the Arbitration Hearing proceeded in her absence in accordance with the information on the Hearing contained in the Pre-Hearing Letter, dated December 11, 2015.
The Applicant bears the onus of proving entitlement to the claimed benefits. Since she did not appear at the Hearing, no evidence was presented to support her claims, and through her representative, she has consented to this Application for Arbitration being dismissed.
Further, I am satisfied that the Applicant has consented to the removal of Maria Mikhailitchenk Personal Injury Law as her representative. She has not responded until the very last minute to the many requests documented by her representative.
EXPENSES:
Under the Expense Regulation and the DPRC, I am required to consider seven criteria in determining whether or not to award expenses and the quantum. The relevant criterion in this case is the conduct of a party that tended to prolong, obstruct or hinder the proceeding, including a failure to comply with undertakings and Orders.
I am awarding expenses payable to Certas by the Applicant because her refusal to contact her representative, provide documents, and explain her situation earlier has necessitated the resumptions of the Pre-Hearing in August and December 2016, as well as the attendance at the Hearing today. Certas has indicated that it may waive her paying the expenses, but it wishes an Order entitling it to the expenses, and it agreed that the amount should be capped.
There have been two, if not three, unnecessary attendances and I am therefore ordering the expenses in the amount of $850.00 as the maximum that may be requested by Certas.
February 13, 2017
Lynda Tanaka Arbitrator
Date
Financial Services Commission des
Commission services financiers
of Ontario de l’Ontario
Neutral Citation: 2017 ONFSCDRS 50
FSCO A15-002678
BETWEEN:
MARIA NACARIO
Applicant
and
CERTAS DIRECT INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
Maria Mikhailitchenk Personal Injury Law is removed as representatives of record for the Applicant in this Application for Arbitration.
The Applicant’s Application for Arbitration is dismissed.
The Applicant shall pay to Certas its expenses of these proceedings, if demanded by Certas, in an amount not to exceed $850.00.
February 13, 2017
Lynda Tanaka Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.